Statutory regulations in Hesse and Schleswig-Holstein on automatic number plate recognition void

The constitutional complaints lodged by several registered holders of motor vehicles against provisions under police law in the Länder (states) Hesse and Schleswig-Holstein which authorise automatic recognition of the official vehicle number plates were successful.

Facts of the case:

The challenged provisions authorise automatic number plate recognition on public roads and squares for the purpose of electronically matching the number plates against tracing files.

First, the vehicles are optically recognised by a camera. With the help of software, the sequence of letters and characters of the number plate is ascertained. Then the number plates are automatically matched against tracing files. When a number plate is contained in the tracing files, the relevant information will be retained. The measure is intended to serve the search for vehicles or number plates that have been reported as stolen or are being traced for other reasons.

The complainants are registered holders of vehicles that they regularly use for travel on public roads of the respective Land (state). They perceive their fundamental right to informational self-determination under Article 2.1 of the Basic Law (Grundgesetz - GG) in conjunction with Article 1.1 GG as violated.

In its judgment of 11 March 2008, the First Senate of the Federal Constitutional Court declared the challenged provisions void as they violate the complainants' general right of personality in its manifestation as the fundamental right to informational self-determination.

The provisions do not comply with the precept of determinedness and clarity of legal provisions because they neither determine the cause nor the purpose of investigation which both the recognition and the matching of the data are intended to serve. Over and above this, the challenged provisions, in their undefined scope, also do not comply with the constitutional precept of proportionality. They make severe interference with the affected parties' right to informational self-determination possible without sufficiently codifying the statutory thresholds which fundamental rights demand for measures that constitute such intense interference.

In essence, the decision is based on the following considerations:

I. Automatic number plate recognition interferes with the scope of protection of the fundamental right to informational self-determination if the number plates are not promptly matched against the tracing files and deleted without further evaluation.

1. The protection of the fundamental right is not eliminated just because the relevant information is publicly accessible - which is even prescribed by statute for vehicle number plates that serve to identify the vehicle. Even if individuals enter public places, the right to informational self-determination protects their interest in ensuring that the related personal information will not be recorded in the course of an automatic collection of information for the purpose of retaining such personal information with the possibility of further use.

2. There is no interference with the scope of protection of the right to informational self-determination in instances of electronic number plate recognition if matching against the tracing files is performed promptly and its result is negative. Additionally, it must be legally and technically ensured that the data remains anonymous and is immediately, and untraceably, deleted without the possibility of drawing a connection to the person whose data is recognised. In such cases, data recognition does not constitute an act of endangerment.

3. An interference with the fundamental right exists, however, where number plates that have been recognised are retained in storage and where they can become the basis for further measures. This is, above all, the focus of the measure if a number plate is discovered in the tracing files. From this point, it is at the disposal of governmental entities for evaluation, and the specific risk to the owner's personality as regards his or her behavioural freedom and privacy begins.

II. Interference with the fundamental right to informational self-determination must have a statutory basis that is constitutional. The challenged provisions do not meet this requirement.

1. The constitutional requirements placed on the basis for the authorisation depend on the gravity of the interference, which is especially influenced by the nature of the collected information, the cause and the circumstances of collection, the affected groups and the way in which the data will possibly be used.

Especially depending on the context of in which it is used, automatic number plate recognition to be reviewed here can lead to fundamental rights restrictions of differing magnitudes. Comparably little relevance to the personality of those affected is exhibited by measures where the sole purpose of such data recognition is to locate stolen vehicles and "apprehend" their respective drivers, especially in order to avoid subsequent offences, or to prevent drivers without sufficient insurance cover from continuing their journey. The fundamental-rights relevance of the measure changes if automatic number plate recognition serves, by contrast, to use the collected information for additional purposes, for instance to obtain information about the driver's travel patterns or other information about particular journeys that bears relevance to the driver's personality. Interference of considerable significance is possible especially through performance of long-term or large-area number plate recognition.

2. The provisions contravene the precept of determinedness and clarity of legal provisions.

a) An adequate designation of the cause and the purpose of use of automatic data recognition that is sufficiently area-specific and clear is missing.

The challenged provisions allow the recognition of number plates "for the purpose" of matching them against tracing files. This, however, neither determines the cause nor the purpose of investigation which both recognition and matching are ultimately intended to serve. The use of the terms "tracing files" (Fahndungsbestand) and "search notice" (Fahndungsnotierung) does not serve to specify the scope of application of the authorisation. These terms have the nature of a dynamic reference, which, in particular, does not rule out that the extent of the data stocks involved will change continually and in a manner which is not foreseeable at present.

The legal provisions forming the basis of the authorisation are so vaguely drafted that it cannot be ruled out that also alerts for police surveillance could be regarded as a component of tracing files so that police surveillance measures could be carried out with the aid of automatic number plate recognition. This makes a systematic, geographically expansive collection of information about vehicle travel patterns and, subsequently, of people, technically possible with relatively low effort. The interference thus acquires a different quality with increased intensity, requiring a commensurate authorisation for interference.

The ban on the area-wide use of automatic number plate recognition under the law of the Land Schleswig-Holstein only results in a certain limitation of the possible extent of number plate recognition. However, it precludes neither a routine, non-incident-related recognition of number plates nor its targeted use to observe specific vehicles.

Due to the association of the measure to the tracing files, with the simultaneous vagueness of its purpose of use, it cannot be inferred from the provisions under Land law whether number plate recognition may also be employed for prosecutorial purposes, which include making provision for the prosecution of criminal offences prior to suspicion.

Even if it is probably possible to eliminate some of the deficiencies as to determinedness by means of interpretation, the shortcomings, especially the lack of determinedness of the purpose of use, cannot be remedied by a restrictive interpretation in conformity with the constitution. Such an interpretation assumes indications that the more narrowly drafted purpose shall be the decisive one. Evidence of this is missing here.

b) The lack of designation of the purpose of automatic number plate data recognition coincides with an unconstitutional lack of determinedness regarding collectable information. Both regulations leave open whether, or, if appropriate, which additional information beyond the order of, and symbols on, the number plates may be collected. The currently customary recognition of number plate data by video necessarily goes along with a recognition of all details recognisable from the image, as well as possibly of details about the passengers of the vehicle, although the provisions, if interpreted narrowly, allow the recognition of number plate data alone. As the purpose of use of the collected information is not regulated with sufficient clarity and determinedness, the scope of collectable information cannot be sufficiently limited by such an interpretation, which makes reference to the designation of the purpose of use.

3. In their undefined scope, the challenged provisions also do not meet the constitutional precept of proportionality.

They make severe interference with the affected parties' right to informational self-determination possible without sufficiently codifying the statutory thresholds which fundamental rights demand for measures that constitute such intense interference. In particular, it is incompatible with the principle of proportionality that the challenged provisions, due to their unlimited scope, make it possible to perform measures of automatic number plate recognition that are non-incident-related or, in Hesse in any event, comprehensive. Furthermore, the statutory authorisation makes the automatic recognition and evaluation of vehicle number plates possible without concrete danger situations or generally increased risks of dangers to, or violations of, legally protected rights providing a cause for the establishment of number plate recognition. A limitation to spot checks, which would be permissible for interference of merely lesser intensity, such as the recognition of the number plates of stolen vehicles, has also not been provided.

III. The Land legislatures have different options at their disposal to develop an authorisation for interference which is sufficiently specific and reasonable and keeps within their competence. For a regulation that preserves the proportionality of the automatic number plate recognition requirements, a broadly framed purpose of use is, for example, not ruled out if it is combined with a strict limitation of the conditions for interference, like those provided in the regulation currently in force in the Land Brandenburg. Furthermore, it is possible to combine more narrowly framed designations of the purpose, which restrict number plate recognition to purposes of use which do not constitute an intensive interference, with correspondingly less restrictive conditions for entry in the tracing files and for the cause of the recognition of such data.